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RICHARD ADAMS v ARIZONA BAY PTY. LTD., CHARLIE HABIB and BUNGE PTY. LTD.

Disability Disability Rights
Friday 14 December, 2012



RICHARD ADAMS v ARIZONA BAY PTY. LTD., CHARLIE HABIB and BUNGE
PTY. LTD.



No. H96/128


Number of pages - 5


HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

S CRENNAN (Commissioner)

MELBOURNE, 11 December 1996 (hearing), 14 March 1997 (decision)

#DATE 14:3:1997

#ADD 25:3:1997

Appearances

Complainant:

Counsel: Ms Melinda Richards

Solicitors: Maurice Blackburn & Co

Respondents:

Second Respondent in Person

Mr. Asif Ali Zafar for the Third Respondent

Complaints substantiated.

S CRENNAN (Commissioner)

INTRODUCTION

1. This is an inquiry pursuant to s.79(1) of the Disability Discrimination
Act
into a complaint against the respondents, Arizona Bay Pty. Ltd. ("the
first Respondent") and Charlie Habib of Western District Cabs ("the second
Respondent") and Bunge Pty. Ltd. ("the third Respondent") pursuant to sections
5, 6, 24, 39 and 123 of the Disability Discrimination Act 1992 (Cth)
("the Act").

2. Mr. Habib was the owner of Arizona Bay Pty. Ltd. and Mr. Zafar was the
owner of Bunge Pty. Ltd. Together they operated a taxi business under the
business name, Western Cabs which was co-owned at all material times. By the
time the matter came on for hearing Mr. Habib no longer operated cabs under
that business name. On undertakings being given by Mr. Zafar on behalf of
Bunge Pty. Ltd. and. Mr. Ince, a driver employed by Western District Cabs which
assured Mr. Adams of a proper taxi service for the future, the Complainant
elected, through his Counsel, to proceed only against Mr. Habib. By consent,
an order was made withdrawing the complaint against the third Respondent.

3. In essence the complaint was that the Complainant had been unlawfully
discriminated against and harassed by Charlie Habib, the co-owner of Western
District Cabs. Mr. Adams had a wasted left leg as a result of an industrial
accident and was incapacitated and unable to drive a car. Accordingly he was
reliant on the local taxi service in his district Melton, Victoria. He was
obliged to use it for social reasons, for visiting his doctors and on many
other occasions even for short trips. He alleged several instances of
discrimination and harassment arising out of his use of the local taxi
service.

4. Discrimination as defined in ss.5 and 6 of the Act and other relevant
provisions.

"S5(1) [Less favourable treatment] For the purposes of this Act, a person
("discriminator") discriminates against another person ("aggrieved
person
") on the ground of a disability of the aggrieved person if, because
of the aggrieved person's disability, the discriminator treats or proposes to
treat the aggrieved person less favourably than, in circumstances that are the
same or are not materially different, the discriminator treats or would treat a
person without the disability."

"S6 For the purposes of this Act, a person
("discriminator")discriminates against another person ("aggrieved
person
") on the ground of a disability of the aggrieved person if the
discriminator requires the aggrieved person to comply with a requirement or
condition:

with which a substantially higher proportion of persons without the disability
comply or are able to comply; and

which is not reasonable having regard to the circumstances of the case; and

with which the aggrieved person does not or is not able to
comply."

5. S24(1) makes discriminatory provisions of goods, services and facilities
unlawful in the following terms.

"24(1) [Refusal, terms or conditions, manner of provision] It is
unlawful for a person who, whether for payment or not, provides goods or
services, or makes facilities available, to discriminate against another person
on the ground of the other person's disability or a disability of any of that
other person's associates:

by refusing to provide the other person with those goods or services or to
make those facilities available to the other person; or

in the terms or conditions on which the first-mentioned person provides the
other person with those goods or services or make those facilities available to
the other person; or

in the manner in which the first-mentioned person provides the other person
with those goods or services or makes those facilities available to the other
person.

24(2) [Where provision would impose unjustifiable hardship] This
section does not render it unlawful to discriminate against a person on the
ground of the person's disability if the provision of the goods or services, or
making the facilities available, would impose unjustifiable hardship on the
person who provides the goods or services or makes the facilities
available."

6. S39 prohibits harassment as follows:

"39. It is unlawful for a person who, whether for payment or not, provides
goods or services, or makes facilities available, to harass another person who:

wants to acquire the goods or services or to make use of the facilities; and

has a disability;

in relation to the disability."

7. S123(2) make a company responsible for the acts of its directors. That
section provides:

"Any conduct engaged in on behalf of a body corporate by a director, servant or
agent of the body corporate within the scope of his or her actual or apparent
authority is taken, for the purposes of this Act, to have been engaged in also
by the body corporate unless the body corporate establishes that the body
corporate took reasonable precautions and exercised due diligence to avoid the
conduct."

THE EVIDENCE

The Complainant's Evidence

8. The Complainant gave evidence of numerous incidents constituting
discrimination and harassment within the meaning of the Act.

May 1994

9. The first incident occurred in approximately May 1994 and involved a card
known as the M40 card issued to and utilised by pensioners. This card entitles
holders to pay half the recorded taxi fare and to sign a chit or form enabling
the taxi company to claim the balance from the Victorian Taxi Directorate. It
was specifically alleged that on occasions a driver whose name was Nadene (and
who Mr. Adams believed was related to Mr. Habib) altered the fare upwards to
facilitate a greater claim than was properly due against the Victorian Taxi
Directorate under the Scheme. Mr. Adams gave evidence he complained of this to
Mr. Habib who was driving him home on one occasion and Mr. Habib replied "I'm
doing you fucking cripples a favour picking you up anyway". Mr. Adams went on
to allege that he asked Mr. Habib a few times to stop the car but Mr. Habib
drew alongside Mr. Adam's house and said "This is my fucking company and I make
the fucking rules". Mr. Adams further alleged that he said then that he held a
M40 card and would call VicRoads to check his rights and change to another taxi
service. At this Mr. Habib said "You do that, I'll make your fucking life
suffer. No one will be able to help you".

Recurrent failures to respond to calls for service

10. The second discrete allegation was that subsequent to and as a probable
result of the events described above Mr. Adams had great difficulty in engaging
the taxi service. He gave details of being kept waiting for long periods,
sometimes experiencing no cab turning up at all, and on occasions having the
telephone hung up on him when he sought to request services. He also agreed
under cross-examination that there was an occasion upon which he called Mr.
Habib a "son-of-a-bitch" but he explained that he sent a card containing an
apology three days later.

Other Witnesses for the Complainant

Mrs. Janice Adams

11. Mrs. Adams, wife of the Complainant gave evidence. She gave evidence that
the Adams had two daughters aged 8 and 6. She corroborated Mr. Adams' evidence
in relation to the treatment he received after May 1994. She also gave
evidence of the impact of the treatment alleged on the social life of the
family. She did not drive a car and had never had a driving licence.

Dr. Brendan Holwill

12. Dr. Holwill was a consultant psychiatrist who treated Mr. Adams
particularly in respect of the management of his chronic pain. He confirmed
that ease of mobility was one of Mr. Adams' needs. He described Mr. Adams'
desire to be useful in society despite the severe leg injury. He gave evidence
that Mr. Adams is involved in groups who undertake therapy and he is
researching and writing a book on his experiences. Dr. Holwill gave evidence
that he had noted in his medical notes in October 1995 and November 1995
complaints of Mr. Adams concerning the taxi service.

Mr. Phillip Stent

13. Mr. Stent drove for Western District Cabs from May 1994 until January
1995. His evidence was that Mr. Adams ordered cabs from time to time and
without exception cabs were delayed and that Mr. Habib said drivers were not to
pick up Mr. Adams until he, Mr Habib, said so. He gave evidence of being
embarrassed when he went to pick up Mr. Adams after a long delay.

Mr. Alfred Leckie

14. Mr. Leckie had worked as a driver for Western District Cabs between August
1994 and March 1996. He gave evidence that he was instructed on several
occasions by Mr. Habib to inform Mr. Adams and his family that there was a
20-30 minute wait for a cab. He also gave evidence that when he dispatched a
cab on one occasion without that delay Mr. Habib called him into the office and
told him Mr. Adams must wait a minimum of 20 minutes for a cab even if they are
all vacant.

The Respondent's Evidence

May 1994

15. The Respondent denied that he had used the language attributed to him by
Mr. Adams in respect of the May 1994 incident. In fact his evidence was that
the incident never happened. He stated that he did not have a nephew called
Nadene or Nadim. He gave evidence that his son had a similar condition to Mr.
Adams and therefore he understood and sympathised with Mr. Adams.

Recurrent failure to respond to calls for service

16. Further, Mr. Habib asserted that Mr. Adams was treated equally with all
other customers and denied the specific allegations of harassment such as being
made to wait, having no cabs at all turn up, and having the telephone hung up.
He suggested that Mr. Adams was not picked up because he had conflicts with
specific drivers. He also gave evidence there were problems with the phone
system from time to time.

Other Witnesses for the Respondent

Mr. Victor Ince

17. Mr. Ince has been assistant manager at Western District Cabs for the last
five years although he had four months away just prior to giving evidence. Mr.
Ince gave evidence that Mr. Adams had threatened to kill one of the drivers
Steve Marsh one night and he, Mr. Ince, placed a "ban" on Mr. Adams until an
apology was forthcoming. He thought this was a few days later. Mr. Ince
obtained this story from Mr. Marsh. No complaint was made to police. On his
recall Mr. Adams denied these allegations. He also gave evidence that he was
not aware of Mr. Habib asking drivers not to pick up Mr. Adams.

Other evidence

18. Mr. Habib conceded that he pleaded guilty and was convicted at the Geelong
Magistrates' Court in respect of multiple charges of fraud involving M40 cards
already described above. Mr. Habib had an unsuccessful appeal to the County
Court in respect of these convictions.

FINDINGS

May 1994

19. I find on the balance of probabilities that Mr. Habib spoke to Mr. Adams
as alleged by Mr. Adams in May 1994 and insofar as it was necessary to prefer
one conflicting account to another to arrive at that finding I preferred the
evidence of Mr. Adams.

Recurrent failures to respond to calls for service

20. I find, once again on the balance of probabilities, that Mr. Habib gave
directions to staff to the effect that delays in response to calls for cabs
were to occur with Mr. Adams. Insofar as it is necessary to prefer Mr. Adams'
account to Mr. Habib's on this issue I prefer Mr. Adams' account which was
corroborated by other witnesses in any event. I place little weight in Mr.
Ince's evidence that he was not aware of this. He worked mainly on the night
shift which might explain his lack of awareness of the matter which otherwise
seemed to be known to other drivers. On a like basis I find other allegations
made out of the phone being hung up and the non-arrival of cabs on occasions.

Relief

21. The case was conducted by the Complainant's counsel on the basis that
relief was sought against Mr. Habib. Accordingly relief has been granted
against Mr. Habib there being no request or need for ancillary orders against
Arizona Bay Pty. Ltd.

22. In exercise of the powers conferred on me pursuant to ss.80(1) and
103(b)(ii) and (iv) of the Act I make the following declarations:

that the Respondent Mr Habib engaged in conduct that is unlawful under the Act,
namely treating the disabled complainant more harshly than an able bodied
customer in respect of the provision of taxi services.

that the Respondent Mr Habib is to pay to the Complainant damages by way
of compensation assessed at $5,000.00 which may be made in two parts as follows
$2,500.00 on or before 21 December 1996 and $2,500.00 on or before 31 January
1997.